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Can employers impose mandatory vaccination policies?

Article by The Maloney Firm, APC

On December 16, 2020, nearly a week after the FDA granted Pfizer and BioNTech’s COVID-19 vaccine emergency use authorization, the U.S. Equal Employment Opportunity Commission (EEOC) released guidance on employer-required COVID-19 vaccinations. Under EEOC guidance, all employers may impose mandatory COVID-19 vaccination requirements on their employees if the employer follows ADA and Title VII accommodation requirements and allows employees to receive the vaccine from a third party not contracted by the employer. 

Workplace laws such as the Americans With Disabilities Act (ADA) and Title VII provide certain accommodations for employees who have a disability or a “sincerely held religious belief” that would prevent them from being vaccinated. Read more about accommodation requirements for mandatory vaccine policies under the ADA, Title VII, and other workplace laws below.

COVID-19 Insights

ADA-Related Accommodations

The ADA imposes strict limits on employers’ abilities to make disability-related inquiries and to require employees to undergo medical examinations. The EEOC maintains that vaccinations are not medical examinations, and that inquiring about employees’ vaccination status is not a disability-related inquiry. However, pre-screening questions asked by the employer, or a vaccine administrator contracted by the employer, may implicate the ADA’s provision on disability-related inquiries.

If an employer, or a third party contracted by the employer, administers the vaccine, the employer must demonstrate that pre-screening questions it asks employees are “job-related and consistent with business necessity.” Under the ADA, employers may have a qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” However, if a vaccination requirement “screens out or tends to screen out” individuals with disabilities, employers must demonstrate that “the unvaccinated employee would pose a direct threat due to a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 

In order to determine that an individual presents such a “direct threat,” an employer must determine that the unvaccinated employee would expose others to the virus in the workplace, as well as conduct an individualized assessment of the following four factors:

a) the duration of the risk;
b) the natured and severity of the potential harm;
c) the likelihood that the potential harm will occur; and
d) the imminence of the potential harm.

However, employers may ask pre-screening questions without implicating the ADA’s disability-related inquiries provision if:

  1. An employer provides their employees with vaccination and asks pre-screening questions on a voluntary basis, or
  2. An employer requires employees to be vaccinated and the employee receives the vaccine from a third party not contracted by the employer.

Title VII-Related Accommodations

Under Title VII, employers are required to make “reasonable accommodations” for employees with “sincerely held" religious beliefs that preclude them from receiving the COVID-19 vaccine, unless making those accommodations would impose “undue hardship” on the employer. The EEOC indicates that “undue hardship” under Title VII constitutes more than a de minimus cost or burden on the employer.

EEOC guidance strongly suggests that employers should normally assume that an employee’s request for religious accommodation is based on a sincerely-held religious belief, as the definition of religion is broad and covers beliefs, practices, and observances with which employers may be unfamiliar. However, if an employer has objective grounds for questioning either the religious nature or sincerity of an accommodation request, the employer may request additional information from the employee.

What are “reasonable accommodations”? Are employers able to exclude employees who refuse vaccinations from work?

Even if an employer determines that an employee who is unable to receive the COVID-19 vaccine due to a disability poses a “direct threat” at the worksite, the employee cannot be excluded from the workplace—or be subject to any other action—unless there is “no way” of providing a reasonable accommodation (absent undue hardship) that would reduce or eliminate the risk posed by the unvaccinated employee. 

In the case that an employer is unable to reduce this direct threat to an acceptable level, the employer may exclude the employee from physically entering the worksite, but may not automatically terminate them. Instead, the employer must determine whether other federal, state, or local laws apply; for example, the employee may be entitled to work remotely or to take leave. The EEOC suggests that employers engage in a “flexible, interactive process” to best identify workplace accommodation options that do not pose undue hardship, which includes determining the necessity of obtaining supporting documentation about the employee’s disability or religious beliefs and weighing the accommodation options given the nature of the workforce and the employee’s position.

Employers may consult the Job Accommodation Network (JAN) website, which contains resources for different types of accommodation requests, including COVID-19 vaccination-related accommodation requests

Implications for California Employers

Employers risk more liability if they administer the COVID-19 vaccine themselves, or contract with a third party to do so on their behalf, as the vaccine-related pre-screening questions may trigger the ADA’s provisions for disability-related inquiries. Therefore, employers desiring to implement mandatory vaccination policies should consider allowing their employees to receive the vaccine from an administrator not contracted by the employer. Furthermore, while employers are permitted to ask for proof of the vaccination, they cannot ask subsequent questions (for example, asking why the individual did not get vaccinated). Employers should also caution employees against providing any medical information when supplying proof of a COVID-19 vaccine. If an employer chooses to impose mandatory vaccination requirements, the employer should ensure that employees are paid for the time taken to get vaccinated. 

Employees who suffer from vaccine-related reactions or complications may claim that their injuries/illnesses are covered by workers’ compensation (or potentially bring tort claims) if they were required by their employer to receive the COVID-19 vaccine. As a reminder, workers’ compensation benefits are provided to employees for certain on-the-job injuries and occupational illnesses. Whether a vaccine injury is covered by workers’ compensation will depend on the facts and circumstances of each case based on the link between the vaccination and employment.

Employers should also evaluate potential issues under the National Labor Relations Act (NLRA), such as whether any applicable collective bargaining agreement (CBA) authorizes a vaccination requirement; whether a vaccination requirement is a mandatory subject of bargaining; and whether protesting vaccination rules is potential protected concerted activity. Finally, employees may argue that a vaccination requirement constitutes an invasion of privacy. 

For all of the above reasons, employers should think carefully before implementing mandatory vaccination rules in the workplace. They should be prepared to engage in a flexible interactive process with employees who request accommodations for disability or religious reasons and explore all available options before excluding employees from the workplace as a result. 

Resources for California Employers

View the full text of the EEOC’s guidance on employer-mandated vaccine requirements here.

View the full text of Title VII here.

View the U.S. Department of Labor’s page for the Americans with Disabilities Act (ADA) here.

View the Job Accommodation Network’s resources for COVID-19 vaccination-related accommodations here.

If you have questions regarding the application of the EEOC’s guidance on employer-required COVID-19 vaccinations to your business, please contact one of the following attorneys in The Maloney Firm’s Employment Law Department: Patrick MaloneyLisa Von EschenSamantha Botros, or Nicholas Grether.

The Maloney Firm, APC

The Maloney Firm represents clients in trials, arbitrations and appeals in state and federal courts, and also regularly counsels clients on a wide range of business matters delivering cost-effective solutions for their legal needs. Clients of The Maloney Firm receive expertise in and outside of court, even when up against larger, national firms. Always looking out for its clients’ best interests, The Maloney Firm provides significant expertise without significant cost.


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